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Is Nothing Secular?

Whatever else it achieves, the presidential campaign of 2000 will be remembered as the time in American politics when the wall separating church and state began to collapse. George W. Bush set the tone by raising the likelihood of his candidacy after a prayer breakfast and later declaring that his favorite political philosopher was ''Christ, because he changed my heart.'' Not to be outdone, Al Gore boasted that he decided important questions using the religious shorthand ''W.W.J.D.'' -- for a saying,'' he explained, ''that's popular now in my faith, 'What would Jesus do?' ''

Bush and Gore have enthusiastically endorsed a provision of the 1996 welfare-reform bill called charitable choice, which allows faith-based organizations to administer welfare programs with public funds, as long as there are secular alternatives. And then there is the explosive issue of publicly financed vouchers for parochial and secular private schools, which all of the Republican candidates have embraced. Although Gore opposes vouchers, his Democratic opponent, Bill Bradley, provisionally supports them.

It's not just the candidates who are eroding the wall between religion and public life; the courts, by and large, are giving their blessing. At the end of December, a federal district judge in Cleveland struck down a voucher program passed by the Ohio Legislature, and many observers expect the issue to be reviewed eventually by the Supreme Court. If and when the justices finally agree to resolve the constitutionality of vouchers, they will do so against a backdrop of decisions that have been chipping away at the wall between church and state over the past decade. Four justices are poised to uphold vouchers, four justices seem determined to strike them down and the justice with the swing vote -- Sandra Day O'Connor -- has, as usual, refused to reveal her hand.

The real possibility that the court could uphold a vouchers program -- and may also decide later this year that the Constitution protects, rather than prohibits, student-led prayer at high-school sports events -- has put defenders of strict separation between church and state in an apocalyptic mood. ''Vouchers has the potential to be a watershed issue,'' says Steven R. Shapiro, legal director of the American Civil Liberties Union. Barry W. Lynn, executive director of Americans United for Separation of Church and State, maintains that ''we're just one or two votes away on the Supreme Court from a radical redefinition of what church-state separation means.'' The next president, through the justices he appoints if openings arise, will decide just how much of a wall is left standing.

One thing is clear: the era of strict separation is over. For a surprisingly brief period, from the early 1970's to the late 1980's, strict separationism commanded the support of a majority of Supreme Court justices. During the separationist era, even after-school prayer disappeared from public schools, as did cr ches from City Hall Christmas displays unless they were accompanied by plastic animals. Religious conservatives complained that the courts had banished religion from American public life and were enforcing a rigidly secular ideology that prohibited the faithful from expressing their beliefs except behind closed doors. But thanks to a paradigm shift in the courts that religious conservatives have been slow to acknowledge, traditional defenders of church-state separation are increasingly on the defensive, legally and politically.

The Supreme Court is on the verge of replacing the principle of strict separation with a very different constitutional principle that demands equal treatment for religion. And far from threatening public life, or for that matter religious liberty, the revived cooperation between church and state may be an inevitable and perhaps even healthy result of treating religion as just another aspect of identity politics in a multicultural age.

How the wall went up and why it came down is in large measure the story of the relationship between Protestants and Catholics in America. It is no coincidence that the candidates who have seemed to be running for preacher rather than president -- from Jimmy Carter to George W. Bush and Al Gore -- have been from the South. (Carter and Gore are Baptists; Bush is a Methodist.) For the most important political factor in the rise and fall of church-state separationism is the realignment of Southern Protestants, who used to oppose state aid to religious education but now support it. For most of this century, Southern Democrats from conservative and evangelical churches with a strong tradition of walling themselves off from the state feared the effects of government aid to parochial schools. But by the 1980's and 90's, white Southerners were Republican rather than Democratic, and in the wake of Supreme Court decisions banning school prayer and legalizing abortion, they felt more alarmed by what they perceived as creeping secularism than by the threat that public funds might lead to the growth of the Catholic Church. ''The historic conflict was Protestant-Catholic, and although evangelicals were the last to get the word, that conflict is pretty much dead,'' says Douglas Laycock of the University of Texas Law School. ''The alignment today is the religiously intense against the secular, and with respect to that fight, evangelicals and conservative Catholics are now on the same side.''

The reversal of Southern Protestants on the question of state aid to religion is part of a broader religious realignment involving the rise and fall of anti-Catholicism. From the mid-19th to the mid-20th century, the effort to keep public funds out of ''sectarian'' schools was largely driven by Protestant suspicion of Rome. After the Civil War, when public schools began to be established on a national scale, a wave of Italian, German and Irish immigration fueled an anti-Catholic backlash. State Legislatures controlled by nativist Protestants resolved that the ''common religion'' -- by which they meant the King James Bible rather than the Catholic Douay Bible -- should be taught in the newly formed public schools. When Catholics started up their own schools to avoid exposure to a version of the liturgy that they found offensive, Protestant State Legislatures responded by declaring that no state funds for education should be made available to ''sectarian'' -- by which they meant Catholic -- schools. The movement culminated in the proposed Blaine amendment to the Constitution, sponsored by Representative James G. Blaine in 1875, which would have prohibited state tax money raised for the support of public schools from being ''under the control of any religious sect.'' The Blaine amendment narrowly failed in the Senate, but a series of states adopted baby Blaine amendments to their own constitutions, some of which are still in force.

After World War II, when federal and state governments monopolized the education, health and welfare services that had been dominated by the churches, fierce turf battles arose about whose religious message would predominate in the newly expanding public sphere. In the late 1940's, when the United States Supreme Court held for the first time that the Constitution prevented states, as well as the federal government, from ''establishing'' -- or officially endorsing -- religion, there was a resurgence of respectable anti-Catholicism among Protestant elites.

In 1949, Paul Blanshard, a well-regarded Congregational clergyman, wrote a best-selling anti-Catholic screed called ''American Freedom and Catholic Power,'' which claimed that parochial schools, under the direction of the Vatican, threatened to subvert America's common culture. Blanshard went on to become a leader of the nation's pre-eminent lobbying group for strict separationism, Americans United for Separation of Church and State, which was called, at the time, Protestants and Other Americans United for Separation of Church and State. (Well into the 1970's, the house magazine of Americans United had a weakness for photographs of government officials kissing the papal ring; today it tends to demonize Pat Robertson.)

It was Justice Hugo Black, the former Alabama Senator, Ku Klux Klan member and enthusiastic anti-Papist, who announced in 1947 that ''the First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.'' Walter Dellinger, who clerked for Justice Black before becoming the Clinton administration's acting solicitor general, confirms the connection between Black's separationism and his anti-Catholicism. ''In part he was a Bill of Rights absolutist and in part he was a Southern Baptist who was concerned about the power of the papacy,'' Dellinger says.

Protestant suspicion of the Catholic Church may have been a driving force behind the political and legal efforts to deny state aid to parochial schools, but other religious groups contributed to the brief reign of strict separationism. After World War II, mainstream Jewish organizations like the American Jewish Congress and the Anti-Defamation League of B'nai B'rith decided that building a wall of separation between government and religion was the best way of protecting Jews against discrimination.

The Thurgood Marshall of strict separationism was Leo Pfeffer, chief lawyer of the American Jewish Congress's Commission on Law and Social Action. An uncompromising secularist, Pfeffer turned his attention in the 1970's to forbidding any public funds to be channeled to faith-based schools and charities. Pfeffer's greatest victory was Lemon v. Kurtzman in 1971, a benchmark of strict separationism that struck down state laws that provided salary supplements to teachers of secular subjects in Catholic and other faith-based schools.

Applying the Lemon test at the height of the separationist era, some lower courts interpreted the Constitution to forbid expressions of religious faith by private citizens on public property. In 1984, for example, the Federal Appeals Court in Philadelphia held that students in a public high school could not form a nondenominational prayer group because the spectacle of students praying might send a message to nonbelievers that the school was somehow endorsing religion. These and other decisions that held that religion should be a completely private activity inspired an understandable backlash. For in an era when other groups in America -- from gays and lesbians to ethnic minorities -- were finding their voices in public, it seemed a violation of the free-speech rights of the religiously devout to forbid them to proclaim their identity in public along with everyone else.

In the 1980's and 90's, the political, religious and legal forces that had briefly converged to produce the wall of separation began to collapse. The most important political development was the privatization of the public sector, as liberals and conservatives lost confidence in the ability of government to provide welfare and education services in the inner cities. After 12 years of Ronald Reagan and George Bush, the post office had been largely privatized, and during the Clinton administration, the FedEx-ification of the welfare state soon followed suit.

In the wake of a collapse in confidence in the public sphere, many of the groups that had been the stalwarts of church-state separationism began to abandon their position. Consumers of education and welfare services in the inner cities -- most notably African-Americans -- grew tired of being told to wait for improvement that never came. In Indianapolis, half the proposals to administer welfare services came from black churches, even though only a quarter of the churches in Indianapolis are black. At the same time, African-Americans became enthusiastic supporters of school vouchers, which can be used to pay for parochial or secular private schools. A 1999 poll by the Annenberg Public Policy Center of the University of Pennsylvania found that 72 percent of blacks (and 79 percent of Hispanics) favored vouchers, with support especially high among blacks between the ages of 26 and 35.

The growing enthusiasm for parochial education among African-Americans changed the face of the parochial schools themselves. Confronted with declining enrollments in the inner cities, as blue-collar Catholic families fled to the suburbs, Catholic schools made a crucial decision in the mid-1980's to open their doors to non-Catholic children. Ira C. Lupu, a law professor at George Washington University, notes that in 1971, when Lemon v. Kurtzman was decided, Roman Catholics represented more than 97 percent of all the students in Catholic elementary and secondary schools. By the late 1990's, the number of non-Catholics had quadrupled to more than 13 percent. The changing composition of parochial schools, in turn, contributed to the decision by evangelical Protestants to abandon their traditional opposition to school vouchers. Once it became clear that vouchers would not benefit the Catholic Church at the expense of all denominations, the liberal and evangelical Protestant establishments set aside their traditional rivalries and began to start their own schools.

During this period, there was also a realignment among Jews. In the 1970's and 1980's, Jewish-policy intellectuals like Irving Kristol and his son, William, began to talk and write about religion in instrumental terms, arguing that faith was good for society, regardless of precisely which religion you chose to embrace. Some Jewish neoconservatives concluded that they had more in common with evangelicals and with the Catholic hierarchy than with the pillars of reform Judaism, like B'nai B'rith and the American Jewish Congress, which retained their traditional allegiance to church-state separationism. Many Orthodox Jewish organizations reached a similar conclusion, deepening the division between the religiously devout and the secularists. Nathan Diament, the 32-year-old director of the Institute for Public Affairs of the Union of Orthodox Jewish Congregations of America, sees a generational as well as a religious division among Orthodox Jews. ''There are very few Leo Pfeffers left in the community,'' Diament told me. ''We're not the outsiders we once were.''

As Jews became more culturally assimilated, they felt less threatened by an increasingly tolerant Christian majority. And mainstream Christian religions in general became less sectarian and less threatening to religious minorities. In 1965, Tom Lehrer delivered the following verdict on the state of intersectarian relations: ''Oh, the Catholics hate the Protestants/And the Protestants hate the Catholics/And the Hindus hate the Muslims/And everybody hates the Jews!'' Thirty years later, sects that used to compete over whose vision of revealed truth would triumph in the public square began to see value in one another's work. In an age when everyone is a hyphenated American, religious identity became just one more prefix in the pluralistic mix.

Just as political and intellectual support for strict church-state separation was collapsing, its legal underpinnings were collapsing as well. The revolution was driven by ideas from the legal academy, as liberal and conservative law professors began to agree in the 1980's and 1990's that equal treatment for religion might be a more appropriate model than church-state separation for protecting religious liberty.

The shift in the legal culture is perhaps best represented by the career of Michael McConnell, one of the most influential advocates of equal treatment for religion. McConnell, who is 44, describes himself as ''a theological conservative'': he was reared as a Presbyterian and renewed his faith while clerking for Judge J. Skelly Wright and Justice William Brennan, two liberal titans of the Great Society. In 1997, after teaching for more than a decade at the University of Chicago Law School, he moved to the University of Utah, where he had more time to spend with his three children, whom McConnell and his wife taught at home for several years. ''Many people think that it's possible to have an entirely secular education and any religious training can be on the side,'' says McConnell. ''I don't believe that religion is something which is a separable aspect of life.''

McConnell's first contribution to dismantling the wall of strict separationism came during his Supreme Court clerkship in 1981, when he helped persuade Justice Brennan to review Widmar v. Vincent. In 1972, the University of Missouri at Kansas City, which had long made its facilities available to a variety of student organizations, adopted a regulation forbidding the use of university property ''for purposes of religious worship or religious teaching.'' When the university refused to let a student Bible-study group meet after classes, a Federal District Court upheld the exclusion.

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McConnell recalls being outraged by the decision. ''Once the courts had held that a public university had to allow politically subversive groups to meet, it seemed crazy, like lunacy, to say that a Bible-study group couldn't meet,'' he says. ''That just seemed like the height of antireligious bigotry.''

In the Widmar case, the Supreme Court agreed, 8 to 1. When a public institution opens its facilities to private speakers, the court declared, the First Amendment requires it to treat religious and nonreligious groups equally. The decision proved to be the first chink in the wall of separationism.

''I think Widmar is a marvelous example of how an idea can be introduced and have enormous ramifications,'' McConnell says. ''I see much of the litigation over the establishment clause over the last 20 years as a dawning realization that Widmar was right and the separationist decisions of the 1970's are inconsistent with it.''

In 1995, McConnell had a chance to convince the current Supreme Court that the legal debate had shifted so significantly that strict separationism should be repudiated in favor of equal treatment for religion. He argued a case called Rosenberger v. the University of Virginia, which involved a university rule that allowed all journals of student opinion except for those with a religious perspective to receive a subsidy from a student-activities fee. Lower courts had held that a university couldn't withhold funds from a gay student newspaper because it disapproved of its message, and McConnell argued that a religious newspaper was entitled to equal treatment.

The Supreme Court agreed with McConnell, by a vote of 5 to 4. Four justices -- Chief Justice William Rehnquist, Anthony Kennedy, Antonin Scalia and Clarence Thomas -- announced that the First Amendment forbids public institutions to exclude religious groups from benefits that are offered to a broad class of participants. Four justices -- David Souter, John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer -- made a last-ditch defense of the old separationist principle that the First Amendment prohibits direct government financing of religious activity, even if the funds are distributed as part of a neutral scheme. And Sandra Day O'Connor concurred with the majority but drew a series of small distinctions that preserved her ability to change her mind in a future case.

It's striking how closely the positions of some of the justices in the church-state cases correspond to their own religious and educational backgrounds. Three of the four most ardent proponents of equal treatment for religion (Antonin Scalia, Anthony Kennedy and Clarence Thomas) are practicing Catholics, and two of them attended parochial schools. Scalia graduated at the top of his class from Xavier High School, a Jesuit academy in Manhattan, where he was, according to a classmate, a religious and political archconservative. Thomas, who returned to Catholicism after a period of worshiping at an Episcopal church in Virginia, attributes his success to the discipline imposed on him by the Irish Catholic nuns who taught him at parochial school in Savannah in the late 1950's.

Indeed, the fact that you may not have noticed that there are now three Catholics on the court is itself a significant sign of a change in the relationship between religion and government. One test of a group's integration into American society, observes Walter Dellinger, is the point at which no one thinks the trait in question is a relevant consideration in a Supreme Court nomination. Within a single generation, Catholicism, like geographical origin, has simply become beside the point.

By this standard, Jews have completed the integration process as well: when Stephen Breyer became the second Jew appointed by President Clinton, after Ruth Bader Ginsburg, his religion was hardly noted, even though it put Protestants in a minority on the court for the first time in American history. (David Souter and Sandra Day O'Connor are Episcopalians; William Rehnquist is a Lutheran; and John Paul Stevens lists his affiliation simply as ''Protestant.'') Nevertheless, Ginsburg and Breyer have retained the separationist instincts of relatively secular Jews born before World War II. Ginsburg, who was director of the A.C.L.U. women's rights project in the 1970's, has been an especially uncompromising separationist. Indeed, religion is the one area in which Ginsburg and Breyer seem like unreconstructed liberals from another era.

On Dec. 1, 1999, Michael Mcconnell appeared before the Supreme Court again, this time to argue that state aid to religious schools is constitutionally permitted as long as it is part of a neutral scheme that provides benefits to private secular schools as well. McConnell defended the federal law that allows state and local agencies to lend computers not only to public schools but also to religious and secular private schools. The question of what sort of teaching aids the state can lend to parochial schools gave rise to some of the most torturous decisions of the separationist era: the court held in the 1970's that it was O.K. for the government to provide religious schools with textbooks but not maps, on the theory that textbooks benefited the students and maps benefited the school. (This prompted Senator Daniel Patrick Moynihan to remark: what about an atlas -a book of maps''?)

The court may well uphold the loan of computers to parochial schools, because the law forbids the schools to use the computers for religious purposes, and there's no evidence they are violating this restriction. If the justices go even further, and accept McConnell's invitation to overturn the principle that the state can't provide ''substantial'' aid to religion, they could pave the way for a decision upholding school vouchers.

And later this year, the justices will revisit the question of religious neutrality in an even more explosive context: the constitutionality of prayer at a high-school football game. Unlike the voucher cases, which involve the church doing the state's work, the school-prayer cases involve the state doing the church's work. It's impossible to imagine a neutral prayer; prayer, by definition, isn't neutral.

The school-prayer cases reveal several of the justices and presidential candidates to be defenders not of religious equality but of religious supremacism. Just as the strict separationists believe in an entirely secular public sphere, cleansed even of private religious expression, the religious supremacists yearn for an openly religious public sphere, which includes state-sponsored displays of religious devotion.

During the 1980's, the religious supremacists tried in vain to persuade the Supreme Court to reconsider its refusal to permit prayer in schools and the posting of the Ten Commandments in classrooms. The Bush administration aligned itself with the religious supremacists in 1991 when it urged the Supreme Court to uphold a ''nonsectarian'' graduation prayer offered by a minister or a rabbi at the invitation of school officials. The court should permit ''noncoercive, ceremonial acknowledgment of the heritage of a deeply religious people,'' urged Bush's solicitor general, Kenneth Starr. The Supreme Court rejected Starr's argument by a vote of 5 to 4. But the dissenting justices -- Rehnquist, Thomas, Scalia and White -- made it clear that they would uphold nonsectarian school prayers and other state-sponsored religious expression, as long as the state didn't discriminate among religions. For these justices, equal treatment for religion seems like a strategic compromise on the way to the more ambitious goal of an openly religious state.

The next president may have the chance to appoint one or more justices who could make a majority for the pro-prayer camp. And like his father, George W. Bush has allied himself with the religious supremacists. He signed a brief urging the Supreme Court to overturn the decision by the Federal Appeals Court in Texas that prohibited the student-led prayer at the football game. In Texas, school officials effectively sponsored the prayer by asking the students to vote for or against it. The Federal Appeals Court in Texas also made matters worse by requiring the school officials to review a proposed graduation prayer in advance to make sure that it was ''nonproselytizing and nonsectarian,'' which means that it contains no reference to Jesus Christ. As Douglas Laycock of the University of Texas puts it, the lower court ''created the worst of both worlds: the prayer is imposed on people who object and the state is censoring the content of the prayer.''

Within the next decade, it's not hard to imagine a largely privatized public sphere, in which education and welfare services are contracted out to religious organizations on a wide scale. Would the renewed commingling of church and state be good or bad? And for whom?

There is a long theological tradition in America, dating to the 17th century, which holds that the purpose of the wall of separation is to protect the church against the worldly corruptions of the state, rather than to protect the state against the religious overreaching of the church. As churches become more deeply involved in administering public education and welfare programs, they might find themselves under new and troubling forms of scrutiny. And as religion is understood in increasingly instrumentalist terms by politicians and intellectuals, there may be a certain blindness to religion's wilder, more mystical and irrational aspects. Governor Bush may think of churches as the kind of organizations that are good at running well-disciplined grade schools, but in Texas, religion is also David Koresh, the leader of the Branch Davidians.

Even before Waco, however, David Koresh was unlikely to receive a government contract to distribute welfare benefits. A study of more than 1,200 congregations conducted by Mark Chaves of the University of Arizona and recently published in the American Sociological Review reports that only about 3 percent of the congregations surveyed receive government funds today. Chaves found clear racial and religious divisions between the congregations that were interested in applying for government contracts and those that were not. Catholic and liberal-to-moderate Protestant congregations are more likely to apply for government funds than are conservative and evangelical congregations. Furthermore, 64 percent of African-American congregations expressed interest in bidding for charitable choice contracts, as opposed to only 28 percent of predominantly white congregations.

The erosion of the wall between church and state could turn some, but not all, religious organizations into quasi-social-service providers with multimillion-dollar budgets, armies of lawyers and accountants -- and the risks of corruption and patronage that inevitably accompany large government grants. Moreover, the monitoring necessary to ensure that these funds are used for secular purposes could alter the character of the churches themselves.

The quality of political debate may change, too, as the wall of separation tumbles. When Al Gore goes before a convention of black Baptists to declare himself ''a child of the Kingdom and a person of strong faith,'' and when George W. Bush stands in a Houston church reflecting on his decision ''to recommit my life to Jesus,'' they are not inviting follow-up questions from Buddhists or Hindus. Part of the broader triumph of identity politics, the explosion of God talk represents an abandonment of the liberal faith that, before entering the public square, all citizens should set aside the aspects of their identities that are not susceptible to debate.

But whether the collapse of the wall of separation is good or bad for the church or the state, it marks a reversion to what Alan Brinkley, the Columbia historian, calls ''a more typical relationship between religion and the public sphere, if you look over the span of American history.'' Americans have always been deeply religious and deeply suspicious of state-imposed uniformity. In an era when religious identity now competes with race, sex and ethnicity as a central aspect of how Americans define themselves, it seems like discrimination -- the only unforgivable sin in a multicultural age -- to forbid people to express their religious beliefs in an increasingly fractured public sphere. Strict separationism, during its brief reign, made the mistake of trying to forbid not only religious expression by the state, but also religious expression by citizens on public property.

The new vision of equal treatment for religion might be seen as a return to a more normal vision of separationism, which insists that religious activity should be initiated and controlled by individuals rather than by the state. ''This is not a radical new intrusion of religion into public life,'' Brinkley says. ''It's a loosening of rather recent boundaries that in the minds of many people might themselves be seen as a radical innovation.''